Beard and Secretary, Department of Social Services (Social services second review)

Beard and Secretary, Department of Social Services (Social services second review) [2018] AATA 471 (13 March 2018)
Division:General Division
File Number(s): 2017/4530
Re:Peter Beard
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:13 March 2018
Place:Sydney

The reviewable decision is affirmed.
.........................[sgd]...............................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s conditions are fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – spinal condition – excessive weight condition – anxiety – other conditions – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
BACKGROUND

The Applicant, Mr Peter Beard who is aged in his fifties, lives in regional New South Wales.
He completed year eight at school and he previously worked as a machine operator as well as a mixer and filler for the last 17 years. However, he ceased employment in October 2011 because the chemicals from the cement and powders were irritating his asthma and causing him frequent respiratory infections.
Mr Beard lodged a claim for the Disability Support Pension (DSP) on 26 September 2016. He claimed that he suffered from severe back pain. He was awaiting surgery and was undergoing weight loss treatment.
On 3 November 2016, a telephone job capacity assessment (JCA) was performed on Mr Beard by a rehabilitation counsellor. The JCA report was submitted on 4 November 2016.
The assessor held that Mr Beard suffered from hypertension, asthma and circulatory system – other (e.g. vasculitis). The assessor assigned nil points for all conditions as the medical documentation indicated that there was a minimal functional impact on activities.
The assessor further held that Mr Beard had a work capacity of 15 to 22 hours per week within two years.
On 9 February 2017, Mr Beard’s claim for DSP was rejected.
Mr Beard sought review from an Authorised Review Officer (ARO), however, on 7 March 2017 the ARO affirmed the decision under review.
Mr Beard sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). On 20 June 2017, the AAT1 affirmed the below decision.
Mr Beard now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).
THE RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Beard’s circumstances section 94(1) relevantly provides:
94 Qualification for disability support pension
(1)       A person is qualified for disability support pension if:
(a)       The person has a physical, intellectual or psychiatric impairment; and
(b)       The person’s impairment is of 20 points or more under the Impairment Tables; and
(c)       One of the following applies:
(i)        The person has a continuing inability to work…
Put simply, I must be satisfied, first, that Mr Beard has one or more physical, intellectual or psychiatric impairments. Second that these impairments are rated at least 20 points under the Impairment Tables. Third, I must be satisfied that Mr Beard has a continuing inability to work.
Finally, Mr Beard’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next 2 years.
Two other matters require explanation. They are the 13 week qualifying period and the application of the Impairment Tables.
The 13 Week Qualifying Period
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner; however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Beard’s eligibility for DSP in the 13 week period commencing on the day on which Mr Beard’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Beard qualified for DSP between 26 September 2016 and 26 December 2016.
The date of the AAT2 hearing was 5 March 2018 which is more than 14 months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:
31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
The Impairment Tables
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) is subordinate legislation which was made under the SS Act.
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Beard are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ...The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.
Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
Subsection 11(1)(c) of the Impairment Tables provides that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Finally, where a person claims that she or he is suffering from depression etc., the introduction to Table 5 of the Impairment Tables which is titled “Mental function” provides:
“The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”
THE HEARING
Mr Beard attended the hearing by telephone and represented himself. He gave evidence by affirmation over the telephone.
I found Mr Beard to be an open and honest witness who did his best to assist the Tribunal.
At the beginning of this decision, I briefly recounted Mr Beard’s working life and the cessation of his employment in 2011.
Mr Beard said that after his termination in 2011 he undertook a training course but was unable to find employment. Mr Beard has completed the Program of Support requirements for DSP.
Mr Beard said that he is unemployed and is currently on NewStart allowance.
Mr Beard said that he is not married and that he lives with one of his sisters. She does most of the cooking and shopping, though Mr Beard said that he can cook.
Mr Beard explained that when he was at school he had difficulty in learning to read. He said that he cannot read, and certainly cannot read documents.
I asked Mr Beard if he could find a person to read my written decision to him. He said that his sister would read the decision to him.
I explained to Mr Beard that my task was to assess his impairments as they were during the claim period. In his case, the claim period commenced on the date on which he made a claim for DSP that is on 26 September 2016, and concluded on 26 December 2016. The claim period is 13 weeks in duration.
If his impairments have deteriorated since 26 December 2016, I cannot take this into account. However, if he is unsuccessful before me, any deterioration in his impairments and any subsequent medical evidence can be used if he chooses to make a further claim for DSP.
CONSIDERATION
The Respondent’s Statement of Facts, Issues and Contentions provides at paragraph 25 as follows:
The Secretary accepts that the Applicant had impairments during the qualification period and therefore satisfies s 94(1) (a) of the Act.
Having regard to the evidence before me, I find that Mr Beard does suffer from the following impairments: spinal condition, an excess weight condition, anxiety, asthma, gastro-oesophageal reflux disease (GORD), hypertension, hyperlipidaemia and thrombocytopenia. Therefore, Mr Beard clearly satisfies section 94(1)(a) of the SS Act.
The next issue which I am required to decide is whether any of Mr Beard’s impairments were fully diagnosed, treated and stabilised during the claim period. If so, I am required to assess them under the Impairment Tables. I shall now examine his impairments.
Spinal Condition
Having regard to the medical evidence before the Tribunal, I find that Mr Beard’s spinal condition was fully diagnosed during the claim period.
I note the report by Dr Simon Alexander who is a radiologist, dated 10 December 2014. Dr Alexander reported that Mr Beard had “Spondylolysis and pronounced spondylolisthesis, with lumbosacral disc and bone degenerative changes.”
However, in the report dated 24 August 2016 from Dr Vanessa Perotti who is a Neurosurgery Registrar, Dr Perotti made the following comments.
In his post medical history he is morbidly obese and has told me that his weight is now 178 kg. He appears to be in a terrible situation of his weight increasing as he is unable to walk due to his worsening back pain and which is then in turn creating much worse back pain and radicular pain. He also has hypertension, hypercholesterolaemia and asthma. He has recently seen a dietitian who has put him on a good diet plan and he believe he is already starting to lose weight
On physical examination he was severely morbidly obese and was having difficulty walking with a limp, although I suspect it was due to the pain. He was unable to sit for prolonged period of time in the examination room and needed to walk around and stretch because his back pain was quite severe. On physical exam he had no weakness and he denies any history of incontinence.
His MRI scan shows what is reported as a grade 1 spondylolisthesis but looks like a grade 2, particularly at L5-51 and appears to be potentially secondary to bilateral L5 pars defects. This is putting significant compression on his L5 and nerve roots and he has severe degenerate disc disease at L4-L5 as well.
I have discussed his case with Dr Little and with Mr Beard and at this point in time it is probably unsafe and technically quite difficult to offer Mr Beard any surgical intervention given his weight. Mr Beard is quite committed to losing weight and I suspect that it will take approximately about eight months to a year to get him down to any significant weight level which would be safe for surgery. I suspect given his height that he would need to be at least 120 kg before we could place him on specific spinal table and perform surgery reasonably safely. What I have suggested to Peter is that he aim to at least reach a 135 kg, to have another MRI at that stage and then be reviewed again in Dr Little's Clinic. I have not made any appointments at this stage because lam uncertain how long Peter will take to get to this weight. We would then consider him for surgery, in particular spinal fusion at L5-51 and at L4-L5, which we could put him on the waiting list and then my suggestion would be that he should lose probably another 15 kg and get to between 115-120 kg while he is on the waiting list if he still requires surgery. I have suggested to Peter that potentially significant weight loss will significantly help his bock pain and he may not need surgery at that time but given that there is quite a lot of spondylolisthesis, I do not think that could be corrected with weight loss.
From Dr Perotti’s report, it is clear that during the claim period, Mr Beard was trying to lose weight so that he could undergo, or could discuss undergoing back surgery. I therefore find that during the claim period, Mr Beard’s spinal condition was not fully treated and stabilised.
In his evidence before me, Mr Beard said that his spinal condition had deteriorated since the end of the claim period, and he now finds it more difficult to walk. However, I am unable to take account of this deterioration.
Excessive Weight Condition
From the report of Dr Perotti which I have quoted above, it is clear that Mr Beard’s excessive weight condition was fully diagnosed during the claim period.
In his evidence before me, Mr Beard said that he visited a dietician in October and November 2016 which is during the claim period. He agreed that he lost six kilos, but he said that he then put those kilos back on again.
Mr Beard said that in about January 2017, that is after the end of the claim period, he had further sessions with another dietician which concluded in about October 2017.
Having regard to Mr Beard’s evidence, I find that his excessive weight condition was not fully treated and stabilised during the claim period.
Anxiety
In his evidence, Mr Beard said that in the past he has taken tablets for his anxiety, but that he no longer takes them. He did see a psychologist in the last six months which is well beyond the claim period.
For anxiety to be fully diagnosed there needs to be medical evidence from a psychiatrist or a clinical psychologist. As there is no such evidence before me, I find that Mr Beard’s anxiety was not fully diagnosed, treated and stabilised during the claim period.
Asthma
In his evidence before me, Mr Beard said that his asthma causes him shortness of breath.
I also note Mr Beard’s oral evidence of undertaking a flow test, which he gave to the AAT1.
Having regard to the evidence before me, I find that Mr Beard’s asthma was fully diagnosed, treated and stabilised during the claim period.
However, there is no detailed evidence before me about any limitations suffered by Mr Beard, other than some shortness of breath. I therefore find that Mr Beard’s asthma has no functional impact on his activities, and accordingly I assess Mr Beard’s asthma at nil points under Table 1 of the Impairment Tables. Table 1 is titled “Functions requiring Physical Exertion and Stamina”.
Gastro-oesophageal reflux disease (GORD)

Dr Conelio Mafohla who is Mr Beard’s GP, wrote in a health summary report dated 30 September 2016 that Mr Beard has been suffering from GORD since 2013.
Mr Beard told the AAT1 hearing which was on 20 June 2017 that he had been having problems with his medication for his GORD. He expected to change his medication at his next medical appointment.
As 20 June 2017 is well beyond the claim period, although it was fully diagnosed, I find that Mr Beard’s GORD was not fully treated and stabilised during the claim period.
Hypertension
From the medical evidence before me, Mr Beard does suffer from hypertension, and I note the report from his GP Dr Conelio Mafohla dated 13 January 2015.
In his evidence before the AAT1, Mr Beard said that he was taking medication for his hypertension and that it was well managed.
I find that Mr Beard’s hypertension was fully diagnosed, treated and stabilised during the claim period. However, as it is well managed and has minimal impact upon Mr Beard, it is assessed at nil points under the Impairment Tables.
Hyperlipidaemia
Dr Conelio Mafohla stated in a health summary report dated 30 September 2016 that Mr Beard has been suffering from hyperlipidaemia since 2001.
In his evidence before the AAT1, Mr Beard said that it was well managed with diet and medication and has minimal impact on his ability to function.
I find that Mr Beard’s hyperlipidaemia was fully diagnosed, treated and stabilised during the claim period.
However, as it is well managed and has minimal impact upon Mr Beard, it is assessed at nil points under the Impairment Tables.
Thrombocytopenia
From the evidence before the Tribunal, I find that Mr Beard does suffer from thrombocytopenia.
At the AAT1 hearing which was on 20 June 2017, Mr Beard told the AAT1 that he is undergoing ongoing pathology and his next blood test is in July 2017.
Accordingly, I find that although Mr Beard’s thrombocytopenia was fully diagnosed during the claim period, it was not fully treated and stabilised.
CONCLUSION
As none of Mr Beard’s impairments attain any points under the Impairment Tables he does not comply with section 94(1)(b) of the SS Act and therefore does not qualify for DSP.
In these circumstances, it is not necessary for me to determine whether Mr Beard has a continuing inability to work within the meaning of section 94(1)(c)(i) and attendant provisions of the SS Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of

......................[sgd]..................................................
Associate
Dated:

Date(s) of hearing: 5 March 2018

Applicant: In person

Advocate for the Respondent: Sharon Sangha

Solicitors for the Respondent: Department of Human Services

[2018] AATA 471

13 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date(s) of hearing:	5 March 2018
Applicant:	In person
Advocate for the Respondent:	Sharon Sangha
Solicitors for the Respondent:	Department of Human Services